Court File and Parties

Court File No.: CR-18-400000-17-0000 Date: 2019-02-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Talha Saeed

Counsel: Henry Poon, for the Crown Dean Embry, for the Defendant

Heard: January 7 and 8, 2019

Justice: J. Copeland

Reasons for Judgment

[1] Talha Saeed is charged with four firearms offences arising out a shooting at the Roywood housing complex on May 27, 2016.

[2] I will not list each of the offences. The sole issue at trial is whether the Crown has proven Mr. Saeed’s identity as the shooter beyond a reasonable doubt. If identity is proven, it is not in dispute that the other elements of the offences are made out.

[3] The shooting took place overnight at the housing complex. Based on the video evidence before the court, over a period of approximately four minutes, the shooter walks and runs around the outside of several buildings of the complex, apparently looking for the intended target of the shooting. He tries to enter one of the buildings. The shooter is then seen firing at least two shots into a unit in the complex.

[4] No-one was injured.

[5] The apparent intended target of the shooting did not testify at trial. Nor was any other witness called who saw the shooting and could identify the perpetrator. As a result, the Crown bases its case to identify Mr. Saeed as the shooter on video of the perpetrator at the time of the shooting, and immediately before and after the shooting taken by the security cameras at the housing complex where the shooting occurred, as well as still photos extracted from that video. The security videos clearly shows the shooter holding a handgun, and firing at least two shots into a unit in the housing complex.

[6] Crown counsel argues that the videos taken together with two pieces of circumstantial evidence are sufficient, cumulatively, to prove Mr. Saeed’s identity as the shooter beyond a reasonable doubt. Crown counsel argues that the court can come to a conclusion about identity based on its own review of the videos and stills taken from them in accordance with R. v. Nikolovski, [1996] 3 S.C.R. 119.

[7] In addition, the Crown supports the identification with the recognition identification evidence of Detective Nair called pursuant to R. v. Leaney, [1989] 2 S.C.R. 393.

[8] The two pieces of circumstantial evidence which the Crown relies on to support a finding identifying Mr. Saeed was the shooter are as follows. The security video shows the shooter get out of and into a dark coloured SUV with certain physical characteristics. Mr. Saeed has been associated with a black Honda CRV that shares those characteristics. The other piece of circumstantial evidence relied on by the Crown is evidence that eight years prior to the shooting, Mr. Saeed attended on one occasion at the Roywood complex (i.e., he has some past association with the location of the shooting).

[9] Crown counsel argues that taking this evidence together, its probative force arises from the improbability of coincidence of these similar factors between the shooter and Mr. Saeed. Crown counsel argues that the probability of coincidence in this case with these factors is “vanishingly small”.

[10] Counsel for Mr. Saeed argues that the evidence taken cumulatively is not sufficient to prove Mr. Saeed’s identity as the shooter beyond a reasonable doubt.

[11] There is no physical evidence connecting Mr. Saeed to the shooting. Nor is there any admissible evidence connecting him to the apparent target of the shooting (the only evidence I heard connecting Mr. Saeed to the apparent target of the shooting was double-hearsay. The defence raised the hearsay issue at the time it was led, and Crown counsel agreed that he was leading it as investigative narrative, and not for the truth of its contents).

[12] The Crown bears the burden to prove all of the elements of each offence charged beyond a reasonable doubt. In this case, Mr. Saeed did not testify. The fact that Mr. Saeed did not testify does not change the burden of proof, or in any way relieve the Crown of its burden to prove Mr. Saeed’s identity as the shooter beyond a reasonable doubt.

[13] Although I will refer to some specific aspects of the evidence in my reasons, I instruct myself that in applying the burden of proof, I must consider the evidence as a whole.

1. The Identification evidence

[14] As part of the investigation, Detective Derek Sullivan, who was the officer in charge of the investigation, obtained security videos from the complex.

[15] The videos are of six different camera views within the complex. Taken together they show various movements of the shooter, and a dark SUV associated with the shooter, within a period of approximately four minutes. The shooter is seen walking and running outside around buildings in the complex, and on two occasions is seen either near or entering a door of a building in the complex. I agree with Crown counsel that the nature of the man’s movements around the complex provide a basis to infer that he has some familiarity with the layout of the complex.

[16] The actual shooting of the firearm can be seen on the video, so there is no doubt that the man in the video fired a firearm. The defence does not dispute that the man in the video had a firearm and fired it.

[17] Having reviewed the videos, I find that they have significant limitations. The views of the shooter are mostly from a significant distance; however, there are two portions with closer views, which I describe below. For most of the time the videos are relatively dark, and less than clear. There are two short points where the view of the shooter is better lit, due to him being near to inside lighting, the same parts where the view of the shooter is closer to the camera. But those portions are still relatively fuzzy. I note that Nikolovski stresses the importance of a clear, good quality video to the ability of a trier of fact to make their own identification based on a video. Further, the views of the shooter are relatively brief (i.e. measured in seconds), in particular the two views where he is closer to the camera and better lit.

[18] As well, the shooter is wearing a hoodie sweatshirt. At times the hood is up, and at other times, it is down. The hoodie has the effect of limiting what portions of the shooter’s face are visible, including in the closer up views of the videos. In many portions of the videos one cannot see the shooter’s face at all.

[19] I will describe in further detail two of the views which are both closer views of the shooter, and also better lit because the camera is in an inside hallway which is well-lit in these two views.

[20] The two closer and better lit views of the videos are from camera 4, and camera 2. In the camera 4 view, the shooter approaches a door to the building from outside. The camera is inside. The apparent target of the shooting and a woman are inside. They run off. The shooter is unable to enter.

[21] This view is better lit than many other of the video extracts because of light from the interior hallway. It also appears that there may also be an exterior light shining on the shooter. However, the view of the shooter is through a window in the exterior door. The shooter is wearing the hoodie up. For this reason the sides of his face, and his ears are not visible. The lower portion of his face (from the mouth down) is obscured by shadow. And the image is relatively fuzzy of the portions of his face that are visible, the eyes, nose and forehead. This camera view is the one from which the still photos for the police bulletin were taken.

[22] In the camera 2 view the shooter enters a vestibule of the building (a different door than the camera 4 view). The shooter has passed one set of doors, but there is still a second set of glass doors between the shooter and the camera. He is partially obscured by the metal frame of the glass doors. This view is better than some of the exterior videos, because it is closer and better lit. But I find that I still cannot see the face of the shooter very well, or discern his features with much clarity. The image of his face is quite fuzzy.

[23] Based on viewing all of the videos, I find one can tell that the male in the videos has some type of facial hair which appears to be a moustache and beard (although the style of the moustache and beard are not discernable). He has dark hair. As I will discuss further below, in the still photos taken from camera 4, I find that one can see that the shooter has a hairline that is straight, and sits relatively low on his forehead. He appears to be of average height, but there is not a good reference point from which to assess his height. He is of slim build. He has medium brown skin. Given the limits of the quality of the video, I can say that he is a youngish man, but would not narrow the age range further than between 20 and 35 years. He is not wearing glasses.

(i) Nikolovski identification

[24] Pursuant to Nikolovski a trier of fact is entitled to review video footage of an alleged offence and draw its own conclusions about whether a person seen in the video is the defendant. In doing so, I must take the approach outlined by the Supreme Court of Canada in R. v. Nikolovski, [1996] 3 S.C.R. 119 at paras. 29-30:

The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable

[25] I have reviewed the security video from the housing complex, and the still photos extracted from the videos. In reviewing the videos and still photos, I have paid particular attention to the views that are the better ones within the ensemble – in particular the views from cameras 2 and 4, where for a short time the shooter’s face is seen somewhat closer and in somewhat better light, and also the stills that Crown counsel focused on from Exhibits 8, 9A, 9B, 14 and 15 (14 and 15 were 2013 arrest photos, and show Mr. Saeed in profile).

[26] As I have noted above, the security videos in this case have a number of limitations. The views of the shooter are for most of the time from a significant distance (although there are a couple of points with closer views). For most of the time they are relatively dark, and lack clarity. There are a couple of short points where the view of the shooter is better lit, due to him being near to inside lighting. But those portions are still relatively fuzzy. I note that Nikolovski stresses the importance of a clear, good quality video to the ability of a trier of fact to make their own identification based on a video.

[27] I acknowledge that one difference between an identification based on a person witnessing a crime, and an identification based on reviewing a video, is that it is possible to re-watch portions of a video multiple times, and slow it down or stop it, or to extract still photos from it: Nikolovski, supra at para. 29.

[28] I have carefully scrutinized the videos and the still photos taken from them. I carefully looked at Mr. Saeed in court during the two days of the trial. I have considered that some features of an individual’s appearance can be changed, such as hairstyle, or whether a person wears glasses or not.

[29] The shooter in the security video does have a number of general similarities to Mr. Saeed. Mr. Saeed is 26 years old, according to the trial evidence (and looks his age). Given the limits on the quality of the video, the shooter appears to be between the ages of approximately 20 and 35 (i.e., he looks like a relatively young man). Both Mr. Saeed and the shooter are of average to tall height, and a slim build. Both have light to medium brown skin. The shapes of their faces are similar. These features are all relatively generic, even when viewed together. The only feature of similarity that I find has a level of distinctiveness is the hairline.

[30] Crown counsel argued that three aspects of Mr. Saeed’s appearance were very similar to the man on the video, and that taken together have significant probative value as evidence of identification. Crown counsel argued these three features were the shape and setting of the eyes, the shape of the nose, and the hairline.

[31] I do not agree that one can make any finding of similarity between the eyes and nose of the man in the video and Mr. Saeed beyond at a very generic level.

[32] I do agree that Mr. Saeed’s hairline is somewhat distinctive. His hairline sits low on his forehead, and is very straight across. From my review of the video, the man in the video seems to have a similar hairline. Crown counsel argued that this hairline is so distinctive that it is like having crossed eyes, or a mole.

[33] On this I disagree. Mr. Saeed’s hairline is somewhat distinctive. But I can consider my own experience that I have seen males in the community with a similar hairline. There is no evidence before the court of how prevalent this type of hairline is. Nor can I (or should I) try and quantitatively put a number on how prevalent this type of hairline is based on my own experience in the community. But I am not satisfied that it is so distinctive in the context of the low quality of the video as a whole, and the lack of other distinctive features, that it gives me confidence to base an identification on it.

[34] I find that the security videos and the still photos are not of sufficient clarity and quality for me to reliability conclude, that Mr. Saeed is that man in the video. I find that I can only draw a more limited conclusion from the videos and photos: that is, that the perpetrator looks similar to Mr. Saeed in that he has similar physical characteristics. Put differently, the man in the video is consistent with Mr. Saeed.

[35] In submissions, Crown counsel also put some weight on the fact that there were no dissimilar characteristics as between the man in the videos and Mr. Saeed. I agree that this is a relevant factor to consider. But I find it is one I must be cautious with, given the limits of the quality of the videos in this case. I agree with defence counsel that given the quality issues with the videos, I cannot be sure that there are not dissimilarities, but they are not visible. One example makes this clear. In the still photos in Exhibits 4, 7, and 8, extracted from the video from camera 4, much of the lower portion of the man’s face is obscured by fuzziness and darkness. In addition, the hoodie and shade obscures the sides of the face, and the ears. Further, even the portions of the face that is visible, the eyes and nose and forehead, are fuzzy. Thus, I cannot be confident that there are no dissimilarities.

[36] I am also of the view that although the absence of dissimilarities is a factor to consider, a court must be cautious not to subtly shift a burden to a defendant to show dissimilarities in order to find that identity is not proven. I am not suggesting that Crown counsel was trying to shift the burden. But it is something that the court must be cautious not to do.

[37] But at a more basic level, based on the quality of this video, I am only able to find that Mr. Saeed’s appearance is similar to, or consistent with the man in the video. The video and the stills taken from it are simply not of good enough quality for me to make any higher finding.

(ii) Leaney recognition evidence of Detective Nair

[38] I gave an oral ruling on January 8, 2019, allowing the Crown to lead Detective’s Nair’s recognition identification of Mr. Saeed as the shooter in the security video. In that ruling I outlined in summary form Detective Nair’s prior acquaintance with Mr. Saeed, and the ways in which that prior acquaintance was limited in the cross-examination of Detective Nair.

[39] I will outline my findings of fact with respect to Detective Nair’s prior acquaintance with Mr. Saeed, as they are relevant to assessing the reliability of Detective Nair’s recognition identification evidence.

[40] I have outlined above that Detective Sullivan obtained security video from the complex where the shooting occurred. From the videos, he extracted a number of still photos. He then prepared a bulletin to circulate electronically to members of the Toronto Police Service to see if anyone recognized the shooter. The bulletin contained three photos extracted from the videos, and a brief description of the shooting incident, and the vehicle involved. The bulletin was marked as Exhibit #8 at trial.

[41] On May 31, 2016, Detective Nair responded to the bulletin by email and identified the male in the bulletin as Talha Saeed. When he responded, Detective Nair included a photo of Mr. Saeed from a 2013 investigation that Detective Nair was involved in (which I discuss further below).

[42] In general, I found Detective Nair to be an honest witness. I accept Detective Nair’s evidence about the nature of his prior acquaintance with Mr. Saeed, except for his evidence that he viewed photos of Mr. Saeed in both 2009 and 2010. For reasons I will explain, I find that aspect of his evidence unreliable. However, as I have noted, the opportunity of Detective Nair to observe Mr. Saeed was limited in the course of his answers in cross-examination. I observe that for the most-part, Detective Nair was quite candid about the limitations.

[43] Overall, I find that detective Nair’s identification of Mr. Saeed as the shooter pursuant to Leaney is not sufficient, either standing alone, or in the context of the evidence as a whole, to persuade me beyond a reasonable doubt that Mr. Saeed was the shooter. In short, and for reasons I will explain, I find that the circumstances of his making of the identification render it unreliable.

[44] I will begin by setting out in more detail Detective Nair’s evidence about his past acquaintance with Mr. Saeed.

[45] Detective Nair testified in examination-in-chief that he had viewed photos of Mr. Saeed in 2009 and 2010 in his role as a field intelligence officer at 33 Division. He identified the photo he had seen in 2009 which was marked as Exhibit B on the voir dire, and later Exhibit #13. In his examination-in-chief and near the start of cross-examination, he identified the photo of Mr. Saeed marked as Exhibit #10 as the photo of Mr. Saeed that he had seen in 2010. He confirmed in cross-examination that he recalled seeing the Exhibit B/#13 photo in 2009, and the Exhibit #10 photo in 2010.

[46] However, in cross-examination Detective Nair agreed that he was mistaken that the two photos he had previously seen were from 2009 and 2010 (Exhibits #13 and #10 respectively). He agreed that in fact they were from 2010 and 2013. Although he maintained that he had viewed photos of Mr. Saeed in both 2009 and 2010, there was no supporting evidence of another photo from 2009 or 2010, once Detective Nair agreed that Exhibit #10 was a 2013 photo.

[47] Detective Nair testified that he then had involvement with Mr. Saeed in a 2013 project investigation. 2013 was the first time Detective Nair had seen Mr. Saeed in person. The 2013 investigation involved several opportunities for Detective Nair to view Mr. Saeed in person or photos or video of him. These opportunities included:

• Seeing a surveillance video of Mr. Saeed leaving an address and getting into a car, as well as a number of still photos extracted from that video.
• Attending for the arrest of Mr. Saeed and execution of a search warrant at his home in November 2013.
• Attending Mr. Saeed’s bail hearing for two days following the 2013 arrest.
• Viewing photos of Mr. Saeed on his own phone which was searched pursuant to a search warrant.

[48] However, in cross-examination, it became clear that in many ways these prior opportunities for Detective Nair to observe Mr. Saeed (or photos of him) in 2013 were limited, in particular in terms of his time to observe or the nature of his observations:

• Regarding the surveillance video from the 2013 investigation, Detective Nair agreed in cross-examination that the video was relatively brief.
• Although I accept that Detective Nair was at Mr. Saeed’s home for two hours on the date Mr. Saeed was arrested in November 2013, I find that his opportunity to observe Mr. Saeed was relatively brief, a few minutes at two points. Detective Nair candidly agreed in cross-examination that it was likely that Mr. Saeed was removed from the home within 30 minutes after his arrest. Detective Nair agreed that when Mr. Saeed was initially arrested by another officer when police arrived, Detective Nair after a few minutes went upstairs to take photos, and did not then continue to observe Mr. Saeed. Further, when he later witnessed officer Sidhu speak to Mr. Saeed to get his cell phone password, this was a brief observation, and at the time, Mr. Saeed was seated with his back to Detective Nair.
• Detective Nair was not involved in the transportation or booking of Mr. Saeed following the November 2013 arrest. He testified that he would only have had brief interaction with Mr. Saeed at the station as the OIC, just to check on his well-being by opening the window in the interview-room door to make sure Mr. Saeed was alright.
• Although Detective Nair was at court for two days with Mr. Saeed for the 2013 bail hearing, he did not watch him the whole time, and was not watching him for purposes of identification. However, I do note that Detective Nair maintained that he did watch Mr. Saeed and the other accused in the prisoners dock for at least some of the time, because he wanted to observe whether they still appeared to be getting along.
• Detective Nair was unable to recall much detail about the photos on Mr. Saeed’s phone from the 2013 investigation (although he did maintain that there were many photos that included Mr. Saeed in them).

[49] The defence argues that when viewed following the cross-examination, Detective Nair’s evidence boils down to seeing Mr. Saeed’s photo once in 2010, and then seeing him briefly on the day of his arrest in November 2013 (at his home and at the station), and then during the bail hearing, but not focused on looking at his features. Taking Detective Nair’s evidence as a whole, I agree that this is a fair characterization of his previous opportunities to observe Mr. Saeed. As I noted in my ruling on admissibility, Detective Nair’s prior acquaintance was sufficient to meet the threshold for admissibility pursuant to Leaney, but the case law is clear that the nature and length of the prior acquaintance is relevant to assessing the ultimate reliability of the identification evidence.

[50] Leaney and its progeny allow a witness to provide evidence of identification based on recognizing someone in a video as someone they know. The basis for admissibility of evidence under Leaney is that the witness is sufficiently familiar with the defendant from prior acquaintance to have some basis for the recognition opinion, and that based on the past acquaintance, the witness is in a better position than the trier of fact to identify the perpetrator: R. v. Leaney, [1989] 2 S.C.R. 393, R. v. Berhe, 2012 ONCA 716, and R. v. Brown.

[51] Case law from the Court of Appeal clearly establishes that recognition evidence is a form of identification evidence. For this reason, it is subject to similar cautions regarding reliability as other types of identification evidence: R. v. M.B., 2017 ONCA 653 at paras. 29-34; R. v. Campbell, 2017 ONCA 575 at para. 10; R. v. Brown, supra at para. 42.

[52] For these reasons, I caution myself with respect to a number of issues in relation to Detective Nair’s identification evidence, well-established in the case law. Identification evidence is evidence which the courts must exercise caution in relying on. Erroneous identifications have been the cause of many wrongful convictions. Honest identification witnesses can be mistaken. A witness who feels certain of the identification he or she is making can be mistaken. The level of a witness’ certainty about an identification does not increase reliability. As a result, in assessing identification evidence, a court must go beyond considering the honesty of a witness, and must also consider all the circumstances in which the identification was made, in order to assess whether the identification evidence is sufficiently reliable to prove the charge beyond a reasonable doubt.

[53] Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness’ opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified – although with the caveat that even a person who knows someone can make a mistake about identification; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures. This is not an exhaustive list.

[54] In the context of recognition evidence, these factors are adapted to include (depending on the circumstances of a particular case): the quality and clarity of the video from which the identification is made; the lighting in the video; the length of time one can see the individual at issue in the video; how close is the view of the individual in the video.

[55] I further acknowledge that as with Nikolovski identification evidence, in a Leaney recognition evidence situation, it is relevant that the recognition witness has the opportunity to view the video from which the identification is made repeatedly: Brown, supra at para. 42. However, this factor is closely linked to the quality and clarity of the video. If a video is not clear and of good quality, that is a factor that may lead a trier of fact to find, in the context of the evidence as a whole, that identification based on such a poor quality video is not reliable: M.B., supra at paras. 32, 39-43.

[56] I accept that Detective Nair tried to be fair and balanced when he testified. For example, he was very clear in his evidence both in examination-in-chief and in cross-examination that he only relied on comparing the faces of the man in the video and Mr. Saeed to make his recognition identification (and to some extent on build, in that the man in the video and Mr. Saeed are both of average to tall height, and slim build). Detective Nair said he did not rely on gait or physical movement of the man in the video in making the identification. He said this because he noted that the man in the video had an unusual way of running, but also because he had only to a very limited extent seen Mr. Saeed walk in the past, and had never seen him run.

[57] However, three factors in particular cause me to find Detective Nair’s recognition identification evidence to be insufficiently reliable for proof of identification beyond a reasonable doubt (either alone or considered with the evidence as a whole).

[58] My first concern is the relatively poor quality of the videos, which I have described above. I find that the relatively poor quality of the video images and stills impacts negatively on the reliability of Detective Nair’s opinion regarding identification.

[59] The second factor that concerns me about the reliability of Detective Nair’s recognition identification is his inability to describe in his evidence any particular features he relied on to make his identification. When asked about this both in examination-in-chief and in cross-examination, his repeated answer was to the effect of: “just the face”. The closest he came to giving any detail was that when he viewed a portion of the video in court (after previously having been questioned about the still photos extracted from the video), he said the profile also led him to make the identification.

[60] I accept that it can be difficult for a recognition witness to pinpoint specific features that led him or her to make an identification. But recognizing this difficulty does not remove the importance of the trier of fact considering whether a witness is able to point to the specific features of comparison used to make the identification. The ability of a witness to do so provides a trier of fact with concrete points of reference to assess the reliability of the identification. Without the ability to pinpoint specific features as the points considered in making an identification, the witness’ opinion regarding identification becomes conclusory: M.B., supra at paras. 45-47.

[61] My third concern regarding the reliability of Detective Nair’s recognition evidence is his relatively limited prior acquaintance with Mr. Saeed. In my ruling admitting his recognition evidence, I held that his past acquaintance was sufficient to pass the threshold for admissibility, but I recognized that along the spectrum of recognition witnesses, Detective Nair’s past acquaintance with Mr. Saeed was relatively limited.

[62] The case law is clear that these factors (in particular the relative more or less past acquaintance of a witness with a defendant, and the relative ability or inability of the witness to point to specific features that led them to make the identification) are relevant in considering ultimately reliability of evidence admitted pursuant to Leaney: Berhe, supra at paras. 20-22; R. v. Abdullahi, [2015] O.J. No. 7216 at paras. 20-21.

[63] I also caution myself not to put undue weight on Detective Nair’s own certainty about the correctness of his identification of Mr. Saeed as the shooter. The case law is clear that an identification witness’ certainty about their identification does not render the identification more reliable. The experience of the courts is that honest identification witnesses can be mistaken. And this principle applies also to recognition identification witnesses: M.B., supra at paras. 61-65.

[64] I consider Detective Nair’s certainty about his identification of Mr. Saeed as the shooter in the context of his inability to describe in any detail what aspects of the shooter in the video led Detective Nair to conclude it was Mr. Saeed. In the absence of some ability to describe specific characteristics that led him to give the recognition opinion, I am particularly cautious not to take Detective Nair’s certainty about his identification of Mr. Saeed as the man in the video as an indicator of the reliability of his identification.

[65] Crown counsel put his case forward on the basis that I should consider the identification evidence along with the other circumstantial evidence to find that the Crown had proven Mr. Saeed’s identity as the shooter beyond a reasonable doubt. I did not understand Crown counsel to go so far as to concede that the identification evidence standing alone was insufficient to prove identity beyond a reasonable doubt, but he fairly said in submissions that the factors he relied on from the videos for Nikolovski identification, bolstered by the Leaney evidence of Detective Nair, probably was not enough to rise to proof of identification beyond a reasonable doubt.

[66] For the reasons I have outlined, I find that the identification evidence standing alone falls well short of proving identification beyond a reasonable doubt.

[67] I turn then to considering the cumulative effect of the identification evidence, the similarity of the vehicle, and Mr. Saeed’s 2008 attendance at the Roywood complex.

2. The evidence of the similarity of Mr. Saeed’s vehicle to the shooter’s vehicle

[68] Crown counsel argues that the force of the Crown’s case comes from the identification evidence being supported by other circumstantial evidence that makes the possibility of coincidence unlikely. The first piece of circumstantial evidence the Crown relies on is that the shooter in the security video is associated with a dark coloured SUV with certain characteristics that are similar to the black Honda CRV that Mr. Saeed was associated with on other occasions.

[69] It is not contested that on an unrelated occasion (the date was not given in the evidence), Mr. Saeed was stopped by police in a black Honda CRV bearing a specific licence plate. Following the shooting, and following Detective Nair responding to the bulletin circulated by Detective Sullivan, police surveillance was placed on Mr. Saeed’s address. The same Honda CRV that he had been stopped in on the unrelated occasion was in the driveway of the home.

[70] Detective Derek Sullivan gave evidence relevant to the circumstantial evidence of the vehicle in the video and Mr. Saeed’s Honda CRV.

[71] In examination-in-chief, Detective Sullivan testified about his observations from reviewing the video of the vehicle which is seen waiting and then driving off in the video (in which the shooter leaves the scene). He noted that it was a dark SUV (at times her referred to it as “black”). He said he took note of the nature of the high tail lights, the roof rack, the high licence plate and plate light, and the wheel rims. The licence plate of the vehicle was not readable in the video.

[72] Detective Sullivan testified that he later determined that the vehicle was a black Honda CRV. After Detective Nair identified the shooter as Mr. Saeed based on the bulletin, Detective Sullivan did checks of police databases for information about Mr. Saeed. He found that on a previous date Mr. Saeed had been stopped by police in a black Honda CRV with a particular licence plate. I note that the date of that stop was not specified in Detective Sullivan’s evidence. But there was no suggestion that that stop had any temporal or other connection to the shooting.

[73] The police then did surveillance on the address they had found as connected to Mr. Saeed, and there was a black Honda CRV in the driveway, with the same licence plate as in the previous unrelated police stop of Mr. Saeed.

[74] Detective Sullivan testified that based on the rear tail lights, the location of the licence plate, the roof rack, and the rims of the vehicle, he concluded that the vehicle in the video was a Honda CRV. He was assisted in reaching this conclusion by google searches where he looked at the features of various makes and models of SUV.

[75] In cross-examination, Detective Sullivan agreed he had not included in the bulletin that the vehicle was a Honda CRV. He said maybe it was not 100% confirmed that it was a CRV at the time he prepared and circulated the bulletin. He said that he confirmed it was Honda CRV when he saw a CRV in Mr. Saeed’s driveway (after Detective Nair’s identification, and after doing checks of police databases regarding Mr. Saeed).

[76] He also agreed that the Honda CRV is not the only make and model of SUV with high tail lights, or a licence plate in the position of the vehicle on the security video, or with a roof rack. He agreed that dark coloured SUVs are common. He agreed with the suggestion that the Honda CRV that was later observed in Mr. Saeed’s driveway was consistent with the vehicle in the security video, but that he could not say for certain that it was the same vehicle as the one in the security video.

[77] I do not accept that that Detective Sullivan was able to identify the vehicle on the video as a black Honda CRV based on what is visible from the video. Indeed, it was not clear to me that he was asserting in his evidence that he was able to come to this conclusion based on the videos and his google searches alone.

[78] I find that from the video Detective Sullivan was able to determine that it was a dark coloured SUV, with certain characteristics, including high tail lights to the side of the rear window, a roof rack, and a particular location of the licence plate, and some features of the rims. But as Detective Sullivan agreed in cross-examination, there are other makes of SUV that share those characteristics. I base these conclusions both on the evidence of Detective Sullivan, and on my own review of the vehicle in the security videos (which I find are not of sufficient clarity to precisely identify the make of the vehicle).

[79] I also find it significant that in the bulletin sent to members of the Toronto Police about the shooting for purposes of seeing if anyone recognized the shooter, the vehicle was described only as a “dark coloured vehicle”. One would expect that if Detective Sullivan had been able to identify the vehicle as a Honda CRV from the video, he would have included this detail in the bulletin. Thus, the fact that the vehicle was described in the bulletin only as a “dark coloured vehicle”, in my view supports my conclusion that Detective Saeed was not able to identify the vehicle as a Honda CRV based on the video (and his computer searches of features of different makes and models).

[80] I find that Detective Sullivan then only drew the conclusion that the vehicle in the security videos was a Honda CRV once he later received the information that Mr. Saeed was associated with a black Honda CRV (after Detective Nair had provided the information that he believed the shooter to be Mr. Saeed, and further investigation of police records relating to Mr. Saeed had was done).

[81] Based on viewing the vehicle in the security video, and Detective Sullivan’s evidence, I find that the shooter was associated on the night of the shooting with a dark coloured SUV with the physical characteristics noted above. This vehicle is consistent with the black Honda CRV that Mr. Saeed had been previously stopped in on an unrelated occasion, and that was in Mr. Saeed’s driveway when surveillance was conducted in the days after the shooting. But the vehicle in the security video of the shooting could also be another make of dark SUV with similar physical characteristics (or indeed, a dark CRV of a colour other than black, or indeed, a different black CRV).

[82] There is no evidence before the court of the prevalence or number of dark coloured SUV’s with the noted characteristics. But as a trier of fact who drives the roads of this city on a regular basis, and in light of Detective Sullivan’s evidence that there are other models of SUV that share the characteristics he noted in the vehicle on the security video, I can use my common sense and experience to conclude that there, there are many dark SUV’s in this city that share those characteristics.

[83] Thus, I find that the fact that the shooter was associated on the security video with a dark coloured SUV with certain characteristics, and Mr. Saeed is associated with a black Honda CRV is a factor of some similarity, but not a particularly distinctive one.

[84] As noted above, the Crown argues its case on the basis of the improbability of coincidence of Mr. Saeed looking similar to the shooter, and also having an SUV that has similar characteristics to that of the shooter. I accept that the similarity of the type of vehicle of the shooter as seen in the security has some weight as circumstantial evidence of identification, in that it further narrows the field of men who look similar to the shooter, to men who look similar to the shooter and also are associated with dark coloured SUV’s. But I am not persuaded that this is a particularly narrow or small group.

[85] I will turn now to the issue of the evidence of Mr. Saeed’s attendance at the Roywood complex on one occasion in 2008. I will then consider the cumulative effect of the three groups of evidence.

3. The evidence of Mr. Saeed’s attendance at the Roywood complex once in 2008

[86] The other piece of circumstantial evidence that the Crown relies on to support the identification of Mr. Saeed as the shooter is the evidence that Mr. Saeed attended the Roywood complex on one occasion in 2008. Crown counsel argues that the movement of the shooter in the video around the complex shows that the shooter was familiar with the complex. He further argues that evidence that Mr. Saeed had a past association with the complex further supports the identification of Mr. Saeed as the shooter.

[87] Scott Buckley, a retired officer who had worked in 33 Division, testified about this event. Mr. Buckley had no present recollection of the events. The Crown sought to lead his evidence based on his notes as past recollection recorded. Mr. Buckley read in his notebook entries from a date in August 2008. He testified that the note book entries were made contemporaneously with the events, and were true at the time they were made.

[88] Mr. Buckley’s evidence was that on August 22, 2008, he attended at the Roywood complex. He observed officers running into 237 Roywood. He followed the officers in. As he walked into the building, he heard another officer banging on a door to a unit. Shortly after that four males came out of the unit. Mr. Buckley stopped two of the males and advised them they were being investigated in relation to an offence. One of the males identified himself to Mr. Buckley as Talha Saeed, with a date of birth of 92-08-28 (Mr. Saeed’s birth date). Mr. Buckley recorded in his notes a description of the male as: “M [male] brown, thin moustache, short very short black hair 5’10” 120 [lbs]”.

[89] After this evidence had been led as part of a blended voir dire and trial, counsel for Mr. Saeed agreed that the evidence was admissible as past recollection recorded, and that the defence did not contest the voluntariness of Mr. Saeed’s 2008 utterance identifying himself and giving his date of birth.

[90] I accept that on the security video the shooter’s movements around the complex are such that I can draw the inference that he had some familiarity with the complex.

[91] Based on Mr. Buckley’s evidence, I accept as a fact that Mr. Saeed attended at the Roywood complex on one occasion in August 2008. I note that there is no evidence of the nature or purpose of that attendance, or who Mr. Saeed attended with or to see.

[92] I accept that this is some circumstantial evidence to support the identification of Mr. Saeed as the shooter, at least in the sense that it is not a case where there is no evidence that he was ever at the scene of the shooting.

[93] However, by way of comparison, attendance at the complex eight years prior to the shooting is several orders of magnitude less probative than would be evidence that he had attended at the complex in the days or weeks previous to the shooting. Attendance more proximate in time could be probative of an ongoing relationship with the apparent intended target, and/or an attempt to reconnoiter the property.

[94] I find that taken in the context of the evidence as a whole, the evidence of the 2008 attendance is of limited probative value. It is evidence that on one occasion, Mr. Saeed attended at the complex where the shooting occurred, eight years prior to the shooting.

[95] In addition, I agree with defence counsel that the fact that there is evidence that Mr. Saeed attended at the Roywood complex on one occasion, eight years prior to the shooting, is of less probative force in this case because it is not independent of the recognition evidence given by Detective Nair.

[96] Detective Nair previously worked in 33 Division. It was clear from his evidence that Detective Nair knew who Mr. Saeed was because of his prior work in 33 Division – i.e., that Mr. Saeed had some prior association with 33 Division. 33 Division is a part of the Greater Toronto Area, and the Roywood complex is within 33 Division. As a matter of human experience, and the fact that many people move within the city in particular areas, there is a greater probability that someone who already frequents the 33 Division area may have attended previously at the Roywood complex, than the probability that a person taken at random from the Greater Toronto Area would have attended the Roywood complex.

[97] Using mathematical terms – which I do since the Crown’s submission relies on arguments and inferences based on the improbability of coincidence – the evidence of Mr. Saeed’s attendance at the Roywood complex on one occasion eight years prior to the shooting is not a variable that is independent of Detective Nair’s recognition evidence.

[98] This is not to say that the evidence that Mr Saeed attended at the Roywood complex once 8 years previously has no probative value. It has some probative value over an absence of evidence that Mr. Saeed had ever been to the complex. But not much. I want to make clear the limitations on how probative it is, even when taken cumulatively with all of the evidence.

[99] I weigh the fact that Mr. Saeed is proven to have been at the Roywood complex on one occasion eight years prior to the shooting as an additional piece of circumstantial evidence. It takes this case from being one where there is no proven connection between Mr. Saeed and the location of the offences. However, in the context of the evidence as a whole, I find this fact to be of minimal probative value, given the eight year time gap between the proven presence of Mr. Saeed at the complex and the date of the shooting.

Conclusion

[100] Taking all of the evidence cumulatively, the fact that Mr. Saeed’s appearance is consistent with the appearance of the shooter, but not in a particularly distinctive way, the fact that Mr. Saeed is associated with a black Honda CRV and the shooter was associated with a dark coloured SUV with certain physical characteristics, but that could be a model other than a CRV, and the fact that there is evidence that Mr. Saeed once attended at the Roywood complex eight years prior to the shooting, I find that the evidence is not sufficient to persuade me beyond a reasonable doubt of Mr. Saeed’s identity as the shooter. None of these factors sufficiently narrows the field of possible perpetrators such that when they are taken cumulatively they prove beyond a reasonable doubt that Mr. Saeed was the shooter.

[101] Of particular importance to my conclusion in this regard is my finding that the nature of the security video is insufficiently clear, either for me as a trier of fact, or for Detective Nair as a Leaney witness, to reliably identify the Mr. Saeed as the perpetrator. The quality (or lack of quality) of the video is such that I find that many males between the ages of 20 and 35 could fit within the parameters that can be seen on the video.

[102] As I have noted, there is no physical evidence connecting Mr. Saeed to the shooting. Nor is there any admissible evidence connecting him to the apparent target of the shooting. Neither of these types of evidence is required for the Crown to have proven its case beyond a reasonable doubt, but I note their absence in terms of the weight of the evidence before the court cumulatively.

[103] Taken cumulatively, the evidence establishes some level of probability that Mr. Saeed may be the shooter; although I am not persuaded it even rises to the level of a balance of probabilities. In any event, it does not satisfy me beyond a reasonable doubt that Mr. Saeed was the shooter.

[104] I find Mr. Saeed not guilty of all counts.

[105] I thank both counsel for their helpful and streamlined presentation of the case.

Justice J. Copeland Released: February 28, 2019